Law & Critique: A Corporeal Law

by | 28 May 2021

Continuing our cooperation with the journal Law & Critique, Joshua Shaw writes about his recent article. The full text can be found here (link).

The human body and its constitutive materials and effects are formative to law, just as law is formative to the body. Whilst the correspondence of law and the corporeal may not always be apparent or easy to grapple with, it is perhaps most resonantly felt in this moment in the midst of the Covid-19 pandemic. 

The Covid-19 pandemic has entailed a web of laws, such as ministerial regulation, municipal bylaws, public health guidelines and emergency orders, which contribute to terraforming a ‘new normal’ or a ‘pandemic life’ mediated and experienced through the body. The process of terraforming—constituting a ‘liveable’ earth amidst an inhospitable pandemic—can be thought of as a spatial project (or set of projects) choreographed through the movements of human bodies in tandem with the particles of the virus (and the virus’ genetic code which, with each instance of reproduction, potentiates mutation), vaccines, among other matters. Andreas Philippopoulos-Mihalopoulos (2020) wrote for Critical Legal Thinking earlier in the pandemic about the imbrication of human and virus in the production of legal normativity. I similarly wrote for Peer Zumbansen and Priya Gupta’s coronajournal on my embodied experience in relation to the first lockdown (Shaw 2020), speculating that the pandemic response had incidentally conditioned the emergence of a quarantine-body inseparable from the legal measures effected to mitigate the virus. This is reflected in Connor Peter’s (2020) photograph, Quarantine-body, where the figure of the body is distorted, head turned about, hair maimed by amateur handling of kitchen shears; a subtle re-constitution of one’s embodiment in the context of quarantine, shutdown, lockdown or whatever else the arsenal of spatio-legal constraints are named. These spatial projects affect the propinquity of humans, humans and environment, and humans and virus, among other encounters, with the objective of preserving life (of some) through reduction of mortality and morbidity. All this whilst preserving a ‘core’ state of economic relations that ‘must keep […] going’ to produce, distribute and exchange commodities. 

But incidental to enduring the flux of physical distancing, donned-or-doffed masks, staying-at-home, ‘help[ing] out by eating out’, circumscribing ‘essential’ work, double masks, lockdowns, the hoarding of vaccines and personal protective equipment, etc.—all of which reroute and re-stage the molar movement of humans, virus, vaccines and others—are material, representational and aesthetic effects that further transform and constitute reality at the scale of the molecular beneath (and beyond) the apparent solidity of the skin. As Margaret Davies (2017) referenced in Unlimited Law, we might think of law as constituted in the midst of the body encountering broader ecologies, mediated by pathways bodies traverse and find expression through, including neurological pathways, that contribute a kind of law of their own; all of which are reconstituted in encounter of the material-semiotic, like the imaginary bodies discussed by Moira Gatens (1996), so that the body and the law it performs is neither a passive surface for law’s inscription nor a determined product of biology. As Chris Dietz, Mitchell Travis and Michael Thomson (2020) write in the introduction to their edited volume, A Jurisprudence of the Body, bodies are inseparable from law, contributing materially to how law matters in context even as bodies are reformed through law. This might occur in our vulnerability to the virus, exploitation as (or of) ‘essential’ workers (through reliance on the manufacture, transport and consumption of inessential goods), or lack of supplies or governance; be experienced through despondence, mourning or fear; and realised in gestures of illness, distance or protest. Each is engaged in a co-productive relation with law.

Borrowing from David Delaney (2010), I can refer to these choreographies as nomospheric (where nomos refers to law, sphere refers to the world) in that bodies’ movements and flourishes are implicated in regularising and envisaging a legal order in the space of the pandemic, above and beyond the written word of legal texts. There is something world-making in these choreographies. And drawing from Philippopoulos-Mihalopoulos (2015), I can consider this legal order (or lawscape, as he conceptualises it) as exceeding our perceptual experience, emerging in the dynamic encounters of bodies, objects and environs irrespective of our knowledge of it and irrespective of any designs we intend to impose. The molecular effects of these transformations render law part of us, lived as extensions of our bodies and the bodies of others, forming not from an unconscious rooted in our psyche but rather as the preconscious effect of an open ecology of bodies, objects and environs jostling, interacting and ‘intra-acting’ (Davies 2017). This preconscious ecology is ordinarily taken for granted in our movement and experience, only sensed fleetingly through abrupt turns or stops that sunder our connection to the legal space, allowing that legal space to briefly move on without us before we must return (as we all must to keep on living) (Philippopoulos-Mihalopoulos 2015). 

In all, the pandemic has upended experience, meaning and effects of laws of the ‘before time,’ prior to the pandemic, perhaps irreparably, in that the terraform may not be shed; it may be sedimented in our flesh and carried forward in all our bodies—to borrow from Sarah Keenan (2019)—well after the virus is gone and forgotten. 

II.

Describing law as corporeal in this way, attending to the spatial projects that thicken to form, and between, bodies, is helped with spatio-legal theory. In Law and Critique, in an article entitled ‘The Spatio-Legal Production of Bodes Through the Legal Fiction of Death,’ I set out the difference a spatio-legal theory can make for social studies of law and the body (the paper can be accessed and read in full below). My case-study in that article was not related to Covid-19—instead, I considered the medico-legal practice of determining whether a patient is dead—but there are concepts developed in that article that may be useful in going beyond the rough sketch provided above with respect of the pandemic in pursuit of refined observations of the conditions under which legal materiality manifests (see Hyo Yoo Kang and Sara Kendall 2019; Kang and Kendall encourage specificity in legal materialism in contrast to the ambiguity and mysticism they warn crop up in the new materialisms, although this particular effort with respect of the pandemic I shall leave to others or a very future self). More broadly, these concepts may also be helpful with other issues in which the body is or could be made salient ethico-politically (this I am more inclined to do in the near future). These are also concepts that warrant further interrogation and development. These concepts are: first, the intra-discursive flux of the spatio-legal trace; second, corporeal space as lawscaping; and third, the jurisgenerative capacity of ‘antinomian’ bodies.

The spatio-legal trace is a prominent concept in my article. It amounts to an intensity of affects that mediate a predilection for a certain spatial organisation, through which law and normativity find expression. The spatio-legal trace is an immaterial quality, generated from the body in encounter with its environs and made concrete or material in bodily performance. Further, the trace is heterogeneous in form in that the predilection is incomplete and potentially incorporates multiple, even contradictory, spatio-legalities; it is also intra-discursive, as Peter Goodrich (1987) put it in Legal Discourse: Studies in Linguistics, Rhetoric and Legal Analysis, in that spatio-legalities held together in a trace metabolise and transform each other, potentiating qualities distinct from what existed prior to their encounter. Like the bodily architectonics in Henri Lefebvre’s (1991) The Production of Space, which were seen as ontologically prior to Lefebvre’s trialectics constitutive of social space, spatio-legal traces are ontologically prior to legal order. Such traces also exceed the legal order, in that they are not exhausted in the body’s movements or gestures, although they are prone to be transformed through them.

The notion of ‘corporeal space as lawscaping’ is inspired by actor-network theorists in body studies, whose flattening of the ontological world—as Davies (2020) describes it with respect of new materialists and legal theory—attends to the affects of non-human objects and environs without losing what is potentially distinctive of the materials that situationally comprise human bodies. Philippopoulos-Mihalopoulos’ (2013, 2015) concept of lawscape as an open ecology broadens law so it is no longer fixed on the Anthropos, looking askant to circulations of affect among humans and non-humans that constitute forms of relating. My modest contribution, but hopefully one that is still useful, is to openly and provisionally orient to the lawscape from the “perspective of a body” (or bodies), to search forensically for the corporeal space of a body (or many) that enmeshes with the lawscape that simultaneously exceeds and co-produces with it. Methodologically, the legal scholar focusses on those affects that matter from the perspective of that body or bodies as a dispositif or assemblage of actants provisionally identified (Pottage 2012). This should hopefully allow one to make the necessary onto-epistemological ‘cut’ to focus on the body, without fetishising it.

The final concept from my Law and Critique article to be discussed here is the antinomian body. Robert Cover (1984) wrote of jurisgenesis, which he analogised to the cellular behaviour of mitosis, in that novel legal meanings and orderings could emerge through the formation of plural communities, initially extensive with, but potentially severable and distinguishable from, an antecedent, original body of legal order. Putting aside Cover’s particular analogy of mitosis, I adapt the concept of jurisgenesis through material, corporeal feminism of Margrit Shildrick (1997), Elizabeth Grosz (1994) and Robyn Longhurst (2001), who long characterised the body as leaky, volatile or fluid in the face of a majoritarian presumption of the body’s ontological stasis (against which leakiness is selectively construed as deviance). I locate the jurisgenerative in the body itself, as emergent in the entropic tendency for its materiality to resist and defy prescriptions, leaking out, demanding re-articulation of a normative world. This body—all bodies–are antinomian in that their corporeal matters potentiate the dissolution of extant legal order: even bodies thought to be dead by physicians. Antinomian bodies are founts of legal meaning, either in substituting alternative legalities, or in how their corporeal spaces enmesh with a broader lawscape to succour its present status.

I restate these concepts here with the hope they may be helpful to others in accounting for how the body and its constitutive materials and effects are formative to law, just as law is formative to the body. Specifically, I offer these concepts to the extent they can describe the material, representational and aesthetic features of law, and also to invite their challenge, adaptation and development. The concepts undergo greater explication in the Law and Critique article linked below and I continue to think through them elsewhere, as well (see e.g., Shaw 2020b), so I also invite you to read further. 

Main reference

Shaw, Joshua David Michael. 2021. The Spatio-Legal Production of Bodies Through the Legal Fiction of Death. Law and Critique 32(4): 69-90, online.

Additional works cited

Cover, Robert. 1984. The Supreme Court, 1982 Term—Forward: Nomos and Narrative. Harvard Law Review 97(4): 4-68.

Davies, Margaret. 2017. Law Unlimited: Materialism, Pluralism and Legal Theory. Abingdon, UK: Routledge.

Davies, Margaret. 2020. Doing Critical-Socio-Legal Theory. In Naomi Creutzfeldt, Marc Mason and Kirsten McConnachie, eds, Routledge Handbook of Socio-Legal Theory and Methods. Abingdon, UK: Routledge, 83-96.

Delaney, David. 2010. The Spatial, the Legal and the Pragmatics of World-Making: Nomospheric Investigations. Abingdon, UK: Routledge.

Dietz, Chris, Mitchell Travis and Michael Thompson. 2020. Nobody, Anybody, Somebody, Everybody: A Jurisprudence of the Body. In A Jurisprudence of the Body. London: Palgrave, 1-13.

Gatens, Moira. 1996. Imaginary Bodies: Ethics, Power and Corporeality. Abingdon, UK: Routledge.

Goodrich, Peter. 1987. Legal Discourse: Studies in Linguistics, Rhetoric and Legal Analysis. London: Palgrave.

Grosz, Elizabeth. 1994. Volatile Bodies: Toward a Corporeal Feminism. Bloomington: Indiana University Press.

Lefebvre, Henri. 1991. The Production of Space. Oxford: Blackwell.

Longhurst, Robyn. 2001. Bodies: Exploring Fluid Boundaries. London: Routledge.

Kang, Hyo Yoo and Sara Kendall. 2019. Legal Materiality. In Simon Stern, Maksymillian Del Mar and Bernadette Meyler, eds, The Oxford Handbook of Law and Humanities. Oxford: Oxford University Press, 21-38.

Keenan, Sarah. 2019. A Prison Around Your Ankle and a Border in Every Street: Theorising Law, Space and the Subject. In Andreas Philippopoulos-Mihalopoulos, ed, Routledge Handbook of Law and Theory. Abingdon, UK: Routledge, 71-90.

Peter, Connor. 2020. Quarantine-body (photograph). coronajournalonline.

Philippopoulos-Mihalopoulos, Andreas. 2013. Atmospheres of Law: Senses, Affects, Lawscapes. Emotion, Space and Society 7(1): 35-44.

Philippopoulos-Mihalopoulos, Andreas. 2015. Spatial Justice: Body, Lawscape, Atmosphere. Abingdon, UK: Routledge.

Philippopoulos-Mihalopoulos, Andreas. 2020. Covid: The Ethical Disease. Critical Legal Thinkingonline.

Pottage, Alain. 2012. The Materiality of What? Journal of Law and Society 39(1): 167-183.

Shaw, Joshua. 2020a. Quarantine-bodies: An Auto-Psychogeography of Law. coronajournalonline.

Shaw, Joshua David Michael. 2020b. Confronting Jurisdiction with Antinomian Bodies. Law, Culture and the Humanities,https://doi.org/10.1177/1743872120942770.

Shildrick, Margrit. 1997. Leaky Bodies and Boundaries: Feminism, Postmodernism, and (Bio)Ethics. London: Routledge.

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